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0002
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUPERIOR COURT
CIVIL ACTION
NO. 14-3126A
JOE'S LOBSTER MART, INC. & another
1
vs-
MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION
INTRODUCTION
This action arises out of the defendant's, Massachusetts Department of Public Health
("DPH"), decision to revoke Joe's Lobster Mart, Inc.'s ("Plaintiff) certification for inclusion on
the Interstate Certified Shellfish Shippers' List ("ICSSL") and wholesale seafood dealer's permit
("Permit"). DPtl's decision to revoke Plaintiffs ICSSL certification and Permit was based on
Joseph Vaudo ("Vaudo"), the owner of Joe's Lobster Mart, Inc., having entered guilty pleas to
two misdemeanors "relating to the harvesting, processing, storage, distribution or sale of
seafood" as provided for in 105 Code Mass, Regs. 533.017(E)(3). Plaintiff alleges DPH erred as
a matter of law in revoking Plaintiff's ICSSL certification and Permit.
After a hearing and careful review of the parties' submissions, Plaintiffs motion for
Preliminary Injunction is DENIED.
BACKGROUND
Vaudo is the owner of Joe's Lobster Mart, Inc., in Sandwich, Massachusetts. On March
28,2014, Vaudo pleaded guilty to two misdemeanors - knowingly receiving stolen property
'Joseph Vaudo
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under G- L. c. 266, 60, and a fishery report violation under G. L. c. 130, 21 - for allegedly
having received stolen oysters at his place of business, Joe's Lobster Mart, Inc. On April 15,
2014, DPH gave notice of it's intent to revoke Plaintiffs Permit and ICSSL certification based
upon Vaudo's convictions.
DPH's decision to revoke Plaintiff s Pertnit and ICSSL certification was done pursuant to
105 Code Mass. Regs 533.017(E). The pertinent portion of that regulation provides; "The
Department may revoke a permit or approval to operate a facility ... or a dealer's ICSSL
certification, if the facility , . . does not comply with any one or more of the following grounds. . .
Each of the following grounds shall constitute full and adequate grounds to revoke a permit
approval 'or certification ... (3) a criminal conviction of the holder of a permit, approval or
certification, or if the holder of a permit, approval or certifications is a corporation a criminal
conviction of a corporate officer or the owner of the facility ... for a crime relating to the
harvesting, processing, storage, distribution or sale of seafood in connection with the permitted
or certified business.
3
' 105 Code Mass. Regs. 533.017(E)(3).
Plaintiff appealed DPH's decision to the Division of Administrative Law Appeals
("DALA"), DPI I responded by moving for summary decision. On July 28, 2014, Administrative
Magistrate Kenneth Bresler ("Bresler") granted DPH's request for summary decision, finding no
genuine issue of disputed material fact that Plaintiff had been convicted of a crime "relating to
the ... sale of seafood." 10'5 Code Mass. Regs. 533.017(E)(3). On September 4, 2014, Bresler
held a hearing to allow Plaintiff to allocute to DPH why it should not revoke Plaintiffs ICSSL
certification and Permit. At the hearing. Plaintiff called five witnesses and entered thirty-five
exhibits in support of its position that the permit ought not be revoked.
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On September 9. 2014, DALA fonvarded a recording of the hearing, the exhibits
submitted, and color photocopies of the "chalks" used during the hearing to the DPH
Commissioner's office. DPH Commissioner Cheryl Bartlett (the "Commissioner") reviewed all
of the documentation from the hearing as well as the parties' submissions to DALA for summary
decision. On October 3, 2014, the Commissioner issued DPH's Final Agency Decision and
Order, affiraiing and adopting Bresslers summary decision order, which found that Plaintiff had
violated 105 Code Mass. Regs. 533.017(E)(3) and that, therefore, DPH was justified in revoking
Plaintiffs ICSSL certification and Permit.
On October 3, 2014, this court (Curran, J.) granted Plaintiffs emergency motion for a
temporary restraining order, ordering a complete stay on DPH's revocation of Plaintiff s Permit
and ICSSL certification until the parties could be heard on PlaintlfPs motion for preliminary
injunction. That hearing was held on October 7,2014, at which time both sides presented
submissions and were heard in argument.
Plaintiffs primary contentions are that Bresler and/or the Commissioner erred in: (1)
revoking Plaintiffs ICSSL certification and Permit; (2) not providing Plaintiff with a Tentative
or Proposed Decision prior to issuing tire Final Decision; (3) not providing Plaintiff with a
hearing before the Commissioner herself; and (4) revocation of Plaintiffs ICSSL certification
and Permit as violative of the prohibition against double jeopardy.
DISCUSSION
I, Standard and Scope of Review
The standard governing motions for preliminary injunctive relief provides that the court
shall issue an injunction only upon a showing of (1) a substantial likelihood of success on the
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merits, (2) a risk of irreparable harm in the absence of injunctive relief, and (3) that the harm to
the plaintiff absent an injunction outweighs any harm to the defendant in issuing the injunction-
See Packaging Indus. Corp. v. Cheney. 380 Mass. 609, 617 (1980). "Only where the balance
between these risks cuts in favor of the moving party may a preliminary injunction properly
issue." Id. Additionally, where the moving party is seeking injunctive relief against a
governmental body, it must also show that the issuance of an injunction would not adversely
affect the public interest. Landry v. Attorney Gen.. 429 Mass. 336, 343 (1999).
General Laws c. 3OA, 14(7) gives the court the authority to "set aside or modify [a final
agency decision]"' under limited circumstances- Proper grounds for the court to set aside or
modify a final agency decision exists where the decision is "[b]ased upon an error of law,"
G. L. c. 30A, 14(7)(c). The scope of the court's review is "highly deferential to the agency on
questions of fact and reasonable inferences drawn therefrom." Flint v. Commissioner of Pub-
Welfare. 412 Mass. 416,420 (1992). The court gives "due weight to the experience, technical
competence and specialized knowledge of the agency, as well as to the discretionary authority
conferred upon ii." Id.
It is through this deferential lens that the court must analyze the controlling question in
this case; whether Plaintiff has shown a substantial likelihood of success on the merits for its
claims that the decision to revoke its ICSSL certification and Permit was grounded upon error of
law.
11. Substantial Likelihood of Success on the Merits
A. The claim that Vaudo's convictions were not for crimes covered bv the Regulations.
Plaintiff claims that the revocation of its ICSSL certification and Permit was error. After
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careful review of Ihe parties' submissions at summary decision. Bresler's Order for Summary
Decision, and the Commissioner's Final Agency Decision, the court finds that the Plaintiff has
failed to establish likelihood of success on the merits.
The core question before Bresler on summary decision was whether Vaudo's guilty pleas
for violation of G. L. c. 266, 60 and of G. L. c. 130, 21 were convictions for "crime[s]
relating to the harvesting, processing, storage, distribution or sale of seafood in connection with
the permitted or certified business" justifying the revocation of Plaintiff s ICSSL certification
and Permit. 105 Code Mass. Regs. 533.017(E)(3). Bresler made the following findings with
respect to that question:
The fact that Mr. Vaudo bought oysters at his restaurant demonstrates that he
possessed them with the intent to sell them. Therefore, under the definition, he sold
them.
2
Therefore, Mr. Vaudo's crimes "relat[ed] to the . . . sale of seafood in
connectioa with the permitted or certified business." 105 Code Mass. Regs.
533.017(E)(3).
Finding no genuine issue of disputed material fact that Plaintiff violated 105 Code Mass.
Regs. 533.017(E)(3), Bresler granted DPH's motion for summary decision as a matter of law.
Bresler's findings at summary decision were adopted by the Commissioner according to her
written ruling afi er a review of the record, including review of the allocution hearing.
3
The court
gives deference to the fact-finding function of DALA and Bresler as well as the Commissioner's
determination grounded upon it. Bresler concluded in his ruling, and the Commissioner in her
decision agreed :ind accepted, that the crimes Mr. Vaudo was convicted of "relate[] to the .. .
Sell meana to sell, offer or expose for sale, barter, trade, deliver, give away, possess with an intent to sell,
or dispose of in any other commercial manner. 105 C.M.R. 533.006 (underline in original).
3
Bresler stilted in his summaiy decision order that lie was finding only that DPHcouW revoke Plaintiffs
ICSSL certification and Permit, and that the Commissioner was to make the aitimate decision of whether or not it
wou/d revoke in thi; case.
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0007
sale of seafood in connection with the permitted or certified business" in violation of DPH
regulations.
In attacking Bresler's conclusion, Plaintiff attempts to parse out a distinction between
what he contends was its principal Vaudo's actual conduct vis-a-vis the stolen oysters and the
language concerning proscribed activity under the regulation referencing crimes "relating to
harvesting, processing, storage, distribution, or sale" of seafood. In this contention, however, the
Plaintiff is not at all on solid ground. There is no dispute that the license-holder's principal,
Vaudo, came into receipt of the stolen oysters, and that he did so at the location of the business.
Whether he did or did not at some point subsequent dispose of those oysters prior to any actual
sale, as he contends, does not alter that fact. Plainly, both of the crimes to which Vaudo elected
to plead guilty fil within the defmition encompassed under 105 CMR 533.017(E)(3). Plaintiff
has no substantial likelihood of proving otherwise.
B. The failure to issue a tentative or proposed decision.
Plaintiff alleges that the Commissioner eired in not issuing a Tentative or Proposed
Decision in violation of G. L. c. 3 OA. 11(7). Plaintiffs claim is unpersuasive.
General ] .aws c. 3OA, 11(7) provides in pertinent part:
If a majority of the officials of the agency who are to render the final decision have
neither hoard nor read the evidence, such decision, if adverse to any party other than
the agency, shall be made only after (a) a tentative or proposed decision is delivered
or mailed to the parties containing a statement of reasons and including determination
of each issue of fact or law necessary to the tentative or proposed decision .. .
G. L. c. 30A, 11 (7). That statute requires that a tentative or proposed decision be sent
only where "a majority of the officials of the agency who are to render die final decision
have neither heard nor read the evidence . . . " I d. ( emphas i s added) . The Commi s s i oner
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explicitly stated in her Final Decision:
On September 9,2014, the Division of Administrative Law Appeals forwarded to the
Commissioner's office: the exhibits from the [allocution] Hearing; a recording of the
[allocution] Hearing; color photocopies of photographs that were used as "chalks"
during the [allocution] Healing; and, the Opposition of the Petitioner to the
Respondent's Proposed Findings of Fact. In addition to these materials, the
Department reviewed: the Petitioner's Motion for Summary Decision (with exhibits);
the Respo adents' Opposition to the Petitioner's Moti on for Summary Decision (with
exhibits); the Respondents' Objections to the Magistrate's Order and recommended
decision; andj the Petitioner's Response to Respondents' Objections. After
consideration of all of the testimony and materials in this matter, the Department
affirms and adopts the Magistrate's Order allowing the Petitioner's Motion for
Summary Decision.
(emphasis added).
The Commissioner, the agency official responsible for rendering the final decision
in this case
7
reviewed the entire record prior to issuing her Final Decision. Thus, DPH
was not required to issue a tentative or proposed decision under the plain language of
G. L. c. 3OA, 11(7).
C. Failure to have been afforded a hearing before DPH Commissioner Bartlett.
Plaintiff idleges that it was entitled to a hearing before the Commissioner, as she is the
"relevant decision maker" in the case, and contends that the denial of that hearing is a violation
of Plaintiffs due process rights. Plaintiffs claim is unpersuasive.
In suppoit of Plaintiff s contention that it was entitled to a hearing before the
Commissioner, Plaintiff cites to Morris v. Board of Reg, in Med.. 405 Mass. 103,109(1989).
That case is inapposite. Morris involved a final agency decision by a board which explicitly
replaced the heanng officer's factual findings with its own. Here, the Commissioner is not
substituting, disregarding, or contradicting any of Bresler's factual findings. Plaintiff has cited
no authority on point for the proposition that they are entitled to a hearing in front of the
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009
Commissioner.
4
Moreover, each step in the process which led to revoking Plaintiff s ICSSL certification
and Permit was done pursuant to applicable law and regulations. General Laws c. 130, 80
authorizes DPH to promulgate and enforce regulations with respect to wholesale or retail seafood
dealer permits. DPH's regulations are codified in 105 Code Mass. Regs. 533.000 et seq.
Plaintiff was sent notice on April 15, 2014 that its ICSSL certification and Permit were
being revoked for a violation of 105 Code Mass. Regs. 533.017(E)(3) based on Plaintiff s
criminal convictions. Pursuant to 105 Code Mass. Regs. 533.017(H)(3) Plaintiff was afforded a
hearing. The hearing procedure employed was in conformity with G. L. c. 3OA. and 801 Code
Mass. Regs. 1.01 et seq as stated in 105 Code Mass. Regs. 533.017(H)(2).
Under 801 Code Mass. Regs. 1.01(7)(h), a party may file a motion for summary decision
where it is "of the opinion there is no genuine issue of fact relating to all or part of a claim or
defense and he is entitled to prevail as a matter of law ..." 801 Code Mass. Regs. L01(7)(h).
A presiding officer's order on summary decision is an "initial decision" under 801 Code Mass.
Regs. 1.01 (1 l)(b). When the presiding officer issues an order on a motion for summary decision,
that order must be mailed to the parties, filed with the Agency, and comply with G. L. c. 30A,
11(8). 801 Code Mass. Regs. L01(ll)(b), General Laws c. 3OA, 11 (8) requires that the
decision ''be accompanied by a statement of reasons for the decision, including determination of
each issue of fact or law necessary to the decision ... " G. L. c. 30A, 11 (8).
After receiving the initial decision from the presiding officer, an Agency may then issue a
indeed, in circumstances in which Plaintiff was afforded a full hearing before the authorized adjudicative
official including an opportunity to allocute through presentation of witnesses and exhibirs, and where the record of
those proceedings were delivered to and reviewed by the deciding authority, requiring a repetition of that hearing
process is neither appealing in logic nor required under the applicable regulatory framework.
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0010
"final decision" pursuant to 801 Code Mass. Regs. 1.01(1 l)(d). Final decisions must comply
wi t h G. L. c. 30A- 11( 8) and s hal l " i ncor por at e by r ef er ence t hos e por t i ons of an i ni t i al . . .
decision that are affirmed and adopted ..." 801 Code Mass. Regs. 1.01(1 l)(d)-
Here, Plaintiff was afforded the requisite steps in the revocation process, and both Bresler
and the Commissioner complied with the statutory and regulatory requirements in issuing their
decisions. Nothing in the regulations, general laws, or applicable case law supports Plaintiff s
contention that it was entitled to a further hearing before the Commissioner. As referenced
earlier, to permit the Plaintiff to replicate presentation of its case before the Commissioner would
undermine the role of presiding officer as finder of fact and the purpose of the "initial decision"
provided for in the regulations.
D. Vaudo's double jeopardy claim.
Vaudo contends that revocation of his ICSSL certification and Permit, coupled with his
criminal convictions under G. L. c. 266, 60, and G. L. c. 130. 21, constitutes a violation of the
prohibition against double jeopardy contained in the Fifth Amendment to the United States
Constitution and recognized' by Massachusetts common law. Vaudo's claim is without merit.
Double jeopardy protects against, inter alia, "multiple punishments for the same offense."
Luk v. Commonwealth, 421 Mass. 415, 419 (1995). Where a license is revoked for public safety
purposes, however, that revocation is remedial and therefore does not function as a "punishment"
for purposes of double jeopardy. Id- at 426 (revocation of driver's license is considered remedial
under double jeopardy clause); see also Kvitka v. Board of Registration in Med.. 407 Mass. 140,
146 n.4 (1990) (revocation of aphysician's license is considered remedial under double jeopardy
clause) .
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0011
Here, the stated purpose of the regulatory and licensure framework promulgated by DPH
is to "promote consistency with federal standards, rules, and regulations and to establish
mLnimum standards for those persons engaged in the retail sale and wholesale manufacture
and/or distributioa of seafood and to insure the safe and sanitary handling, processing, and
distribution of seafood products" 105 Code Mass. Regs. 533.001 (emphasis added). The
revocation of Vaudo's ICSSL certification and Permit in this case was done for public safety
purposes and thus was remedial in nature and does not violate the prohibition against double
jeopardy.
Plaintiff has failed to show a substantial likelihood of success on the merits of any of its
claims. Because Plaintiff has not made the initial necessary showing, the court need not delve
into the balancing of harms portion of the preliminary injunction analysis.
5
5
The court acknowledges that the possible harm to the Plaintiff by denying injunctive
relief prior to fu] I determination of its complaint for judicial review is hardly insignificant, as it
includes the shut-down of an ongoing business of long-standing and also affects the livelihood of
its employees. The DPH ripostes that there is a significant harm posed by any issuance of the
injunction which relates to the critical task of ensuring food safety and to public health concerns.
It also argues thot the public interest factor implicated in the analysis here likewise weighs in its
favor. Given the plain lack of likelihood of success on the merits of Plaintiff s claim however,
its application for equitable relief cannot succeed even taking account of the issue of harm it
raises. See Tri-Nel Mgrnt. Inc. v. Board of Health of Barnstable. 433 Mass. 217, 277 (2001)
("That the plaintiffs failed to establish a likelihood of success on the merits of their claim is
sufficient to deny injunctive relief.").
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@012
ORDER
For the foregoing reasons, Plaintiffs motion for Preliminary Injunction is
DENIED. A fourteen-day STAY of the revocation of Plaintiff's ICSSL certification and Permit
is ORDERED from this date, as requested by Plaintiff in its alternative request for relief, to
allow Plaintiff to dispose of its current seafood inventory.
Justice of the Superior Court
Dated this 20th day of October, 2014
11